Bombay High Court
Nandkishor S/O Madanlalji Gandhi vs State Of Mah. Thr. Pso Ps Kelwad Tqsaoner ... on 14 January, 2021
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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0`IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO.407 OF 2020
WITH
CRIMINAL APPLICATION (APL) NO.408 OF 2020
CRIMINAL APPLICATION (APL) NO. 407 OF 2020
Rajendra S/o. Bhaurao Mohod,
aged about 48 years, Occ. Farmer,
R/o. Ward No. 2, Kawtha,
Tah. Saoner, Dist. Nagpur. . . . . APPLICANT
.....VERSUS......
1. State of Maharashtra through
Police Station Officer,
Kelwad Police Station,
Tah. Saoner & Dist. Nagpur.
2. Dinesh Fartade,
Aged about major, Occ. Service,
R/o. Office of District Superintendent,
Agriculture Officer, Kadim Baug,
Nagpur.
3. Pankaj Waghode,
Aged about Major,
Occ. Assistant Police Inspector,
Kelwad Police Station, Nagpur.
(Deleted as per order dated 01.12.2020.) . . . NON-APPLICANTS
CRI. APPLICATION (APL) NO. 408 OF 2020
Nandkishor S/o. Madanlalji Gandhi,
Aged about 49 years, Occ. Fertilizer Shop,
R/o. Kelwad, Tah. Saoner, Dist. Nagpur. APPLICANT
.....VERSUS......
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1. State of Maharashtra through
Police Station Officer,
Kelwad Police Station,
Tah. Saoner & Dist. Nagpur.
2. Dinesh Fartade,
Aged about major, Occ. Service,
R/o. Office of District Superintendent,
Agriculture Officer, Kadim Baug,
Nagpur.
3. Pankaj Waghode,
Aged about Major,
Occ. Assistant Police Inspector,
Kelwad Police Station, Nagpur.
(Deleted as per order dated 01.12.2020.) . . . NON-APPLICANTS
Shri S.P.Bhandarkar, Advocate for the applicant (s).
Shri T.A.Mirza, APP for the Respondent/State.
CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED :- 14.01.2021
ORAL JUDGMENT (Per Amit B. Borkar, J)
1. Heard.
2. Rule. Rule made returnable forthwith. Heard by consent of the learned Advocate and learned APP appearing for the respective parties.
3. Since both these applications challenge the same First Information Report, both are being disposed of by common judgment.
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4. By these applications, the applicants have challenged First Information No.152/2020 registered with the non-applicant no.1 - Police Station for offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code, 1860, Section 7 of the Seeds Act, 1966, Section 3 of the Seeds (Control) Order, 1983, Rules 7, 8, 9,10,11, 12, 13 and 14 of the Seeds Rules, 1968, Rule 10 of the Maharashtra Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Rules, 2010 and Sections 7 and 15 of the Environment Protection Act, 1986.
5. The First Information Report came to be registered against the applicants with the allegations that the applicant in Criminal Application No.407/2020 was found in possession of banned cotton seeds having value Rs.730/-. In the First Information Report, there are no allegations against the applicant in Criminal Application No.408/2020.
6. The applicants, therefore, challenged the registration of the First Information Report by way of the present applications. This Court, on 7.8.2020 issued notices to the non-applicants and directed not to file charge-sheet ::: Uploaded on - 18/01/2021 ::: Downloaded on - 07/02/2021 18:20:06 ::: 4 APL407.20 & 408.20.odt without leave of this Court. In pursuance of the notice of this Court, the non-applicant no.1 filed its reply and it is submitted that the seeds, which were found in possession of the applicant in Criminal Application No.407/2020 are banned in State of Maharashtra. It is also submitted that the applicant in Criminal Application No.408/2020 had sold banned seeds to the applicant and the same were delivered by one Dinesh Nikhade, who is working in the shop of the applicant in Criminal Application no.408/2020. It is stated that since the seeds are banned in the State of Maharashtra, its sale is in violation of terms and conditions of license and is in violation of Order 3 of the Seeds (Control) Order, 1983. The seeds sold by the applicant in Criminal Application No.408/2020 does not confirm to the minimum limits of germination and purity.
7. We have carefully considered the contents of the First Information Report. The offences registered in the FIR punishable under the provisions of Indian Penal Code are Sections 420, 468 and 471 are cognizable offences and, therefore, the Police were within their powers to register the complaint and commence the investigation. Section 420 of the Indian Penal Code speaks of punishment for cheating and dishonestly inducing delivery of property. It clearly requires ::: Uploaded on - 18/01/2021 ::: Downloaded on - 07/02/2021 18:20:06 ::: 5 APL407.20 & 408.20.odt that a person to be prosecuted for offence punishable under the said section has necessarily to act in a manner which will amount to dishonestly inducing other person, who has been deceived by the act of cheating to deliver any property or valuable security. In other words, the necessary ingredients of offence under Section 420 of the Penal Code, 1860 is dishonest inducement to the person cheated and to deliver the property or valuable security. Undisputedly, on the face of the First Information Report in question, it does not disclose any fact which can constitute or prima facie establish an act of inducement by the applicants in relation to seeds in question. Even in the affidavit filed by the non-applicant no.1, there is no whisper about any material having been disclosed either at the time of lodging of First Information Report or thereafter which can prima facie establish the act of inducement and much less dishonest inducement by the applicants to any person either to deliver any property or valuable security in relation to the seeds in question. This being so, there was absolutely no case made out, on the face of the First Information Report or even by any other information given alongwith said report by the complainant, disclosing basic ingredients of offence punishable under Section 420 of the Penal Code. Insofar as the allegations ::: Uploaded on - 18/01/2021 ::: Downloaded on - 07/02/2021 18:20:06 ::: 6 APL407.20 & 408.20.odt in the First Information Report having been considered in the context of offences alleged under Sections 468 and 471 of Indian Penal Code are concerned, there is no document alleged in the First Information Report, which has been used for the purpose of cheating much less fraudulently or dishonestly. Therefore, we are satisfied that from the allegations in the First Information Report and the material produced by the non-applicant no.1 on record that no case is made out disclosing ingredients of offences punishable under Sections 468 and 471 of the Indian Penal Code.
8. We have also scrutinized the contents of the First Information Report and other material for the purpose of considering as to whether the offences under Sections 7 and 15 of the Environment Protection Act, 1966 have been made or not. Having considered the contents of the provisions of Sections 7 and 15 of the said Act, we find that there are absolutely no allegations in the First Information Report that the applicants have done anything, which has resulted into discharge or emission of any environmental pollutants in excess of standards prescribed. Section 15 of the said Act provides for penalty for contravention of the provisions of the said Act. Since the allegations in the First Information Report ::: Uploaded on - 18/01/2021 ::: Downloaded on - 07/02/2021 18:20:06 ::: 7 APL407.20 & 408.20.odt and the material produced by the non-applicant no.1 does not disclose basic ingredients of offence punishable under Section 15 of the Environmental Protection Act, we are satisfied that the prosecution cannot be continued against the applicants for offence punishable under Section 15 of the Environmental Protection Act.
9. Since, we have held that the contents of the First Information Report does not disclose any offence under the provisions of the Indian Penal Code alleged in the First Information Report, the offences which remain to be considered are only under the provisions of Seeds Act and Rules.
10. We have considered the contents of the allegations in the FIR for scrutinizing fulfillment of ingredients of offence under Section of the Seeds Act and Rules. From the contents of the First Information Report, it is stated that the applicant in Criminal Application No.407/2020 was found in possession of Seeds, which are banned in the State of Maharashtra. None of the provisions alleged against the applicants in the First Information Report prohibits possession of banned seeds. In the First Information Report, there is no allegation that the applicant in Criminal Application No.408/2020 has sold seeds ::: Uploaded on - 18/01/2021 ::: Downloaded on - 07/02/2021 18:20:06 ::: 8 APL407.20 & 408.20.odt in question to the applicant in Criminal Application No.407/2020. There is no material produced by the prosecution that the applicant in Criminal Application no.408/2020 has sold the seeds to the applicant in Criminal Application no.407/2020.
11. Once it is held that the offences punishable under the provisions of the Indian Penal Code are not made out, the remaining offences alleged against the applicants were non- cognizable offences. Section 155 (2) of the Code of Criminal Procedure specifically debars the investigation by the Police Authorities in case of non-cognizable offence without an order of Magistrate. There being clear provision of debarring the Police Authorities from investigating into non-cognizable offence, unless the FIR sufficiently discloses the material which can be disclosing the cognizable offence, it cannot be said that the police authorities would be justified in continuing with the investigation without permission from Magistrate.
12. The Apex Court in case of State of Haryana Vs. Bhajnlal reported in 1992 Suppl SC 335. In paragraph 102 has clearly held that condition, which is sine qua non for registration of the First Information Report is that there must ::: Uploaded on - 18/01/2021 ::: Downloaded on - 07/02/2021 18:20:06 ::: 9 APL407.20 & 408.20.odt be an information and that information must disclose cognizable offence.
13. In our view, therefore, continuation of the proceedings against the applicants would amount to abuse of process of the Court. We, therefore, pass the following order:
First Information Report bearing No.152/2020 dated 20.06.2020 registered with the non-applicant no.1 - Police Station for offences punishable under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code, 1860, Section 7 of the Seeds Act, 1966, Section 3 of the Seeds (Control) Order, 1983, Rules 7, 8, 9,10,11, 12, 13 and 14 of the Seeds Rules, 1968, Rule 10 of the Maharashtra Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Rules, 2010 and Sections 7 and 15 of the Environment Protection Act, 1986.
is quashed and set aside.
Rule is made absolute in the above terms.
JUDGE JUDGE
Ambulkar
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